Reece v. Edmonton: Legal Standing in Animal Protection

November 13, 2013

The hard fought battle to have Iringa, Toka and Thika, the African elephants based at the Toronto Zoo, delivered to the Performing Animal Welfare Society (“PAWS”) sanctuary in California had a happy ending on October 20, 2013 when they arrived there safely. Before their exodus to PAWS, all three elephants shared a one-hectare zoo paddock – Iringa and Toka were brought to the Toronto Zoo in 1974, and Thika was born there in 1980. Unfortunately, it was the zoo’s budgetary constraints, and not the enforcement of animal welfare laws – the latter of which could have served as a precedent for other jurisdictions – that led to these elephants’ exodus to greener pastures.What about other captive elephants kept in Canadian zoos? Lucy, a 38-year-old Asian elephant kept at the Edmonton Valley Zoo is a sad reminder of the grave failings of our animal welfare laws. In Alberta’s case, the provincial government is unwilling to enforce its own laws, and the Alberta courts will not allow animal advocates to speak for Lucy and hold the government to task, leaving a gaping void within which Lucy can be found.

Lucy was captured in Sri Lanka in 1975 and was acquired by the Edmonton Zoo in 1977, where, apart from being held with another elephant between 1989 and 2007, has lived alone in living quarters that are far too small,[1] and in a harsh climate that forces Lucy to spend the majority of her time indoors. Lucy suffers from her isolation and from unsuitable living conditions: she has been diagnosed with severe chronic infections in her feet, arthritis and respiratory problems, in addition to behavior that is typical of a frustrated, bored and stressed elephant, all of which is thought to be caused or exacerbated by the Edmonton Zoo’s practices. [2]

Alberta’s Animal Welfare Laws:

Alberta’s animal welfare laws prohibit a person from causing an animal to be in distress, unless that distress results from an activity carried out in accordance with reasonable and generally accepted practices.[3] “Animal in distress” is defined as an animal: (a) deprived of adequate shelter, ventilation, space, food, water or veterinary care or reasonable protection from injurious heat or cold, (b) injured, sick, in pain or suffering, or (c) abused or subjected to undue hardship, privation or neglect. [4]

A person must be issued a permit to operate a zoo in Alberta,[5] and a permit-holder must comply with the Government of Alberta Standards for Zoos in Alberta.[6] The Alberta Zoo Standards, introduced in 2006, are meant to ensure that each zoo in the province meets certain minimum requirements. Those standards applicable to Lucy include the following: [7]

– all animals be maintained in numbers sufficient to meet their social and behavioural needs;

– zoo enclosures must meet the animal’s physical and social needs and encourage species-typical movements and behaviours;

– female elephants should not be kept alone and should ideally be kept with at least two other female elephants; [8] and

– zoos must provide an opportunity for each elephant to exercise and interact socially with other elephants. [9]

It is an offence to contravene a zoo permit, which means that the failure to meet the Alberta Zoo Standards, considered a term of a zoo permit, is similarly an offence. [10]

Alberta’s Failure to Enforce its Animal Welfare Laws:

Despite concerns raised about Lucy’s situation that on their face appear to contravene the Edmonton Zoo’s zoo permit, the Alberta government has not taken any steps to enforce its animal welfare laws.[11] In 2010, in response to this inaction, animal advocacy organizations and a local Alberta resident, asked the Alberta Court of Queen’s Bench to render a declaration that the City of Edmonton as the operator of the Edmonton Zoo, was in breach of Alberta’s animal welfare laws. The Court did not consider whether keeping Lucy under her current conditions breached the City’s zoo permit, and instead ruled that the applicants could not obtain the remedy they were seeking because (i) the remedies asked for must be obtained through the regulatory framework provided in the legislation and not in court, and (ii) it is only proper for the Attorney General to challenge the Alberta government’s failure to enforce its own laws.

Not satisfied with an outcome where the City’s practices are seemingly immune from scrutiny, the Applicants appealed to the Alberta Court of Appeal.[12] Frustratingly, two out of three judges of the Court of Appeal also provided that the Applicants could not seek to enforce Alberta’s animal welfare laws – that is the role of the Edmonton Humane Society, on behalf of the Alberta Attorney General. The court made this finding despite the fact that the Edmonton Humane Society has refused or declined to investigate this matter. [13]

The third judge, Madame Justice Fraser, disagreed with the majority position and posed the obvious question: if the government is unwilling to enforce its own animal welfare laws and the courts will not allow private parties, like the Applicants, to seek remedies from the court, who else will enforce these laws? Does this mean that the Alberta government, and the City as an arm of that government, is shielded from judicial scrutiny of potentially unlawful acts? [14]

The Applicants sought leave to appeal the Alberta Court of Appeal decision, but the Supreme Court of Canada refused to hear the matter. Unfortunately, the Supreme Court of Canada did not provide reasons for its decision.

Where does all of this leave Lucy? Unfortunately, until the legislature amends Alberta’s animal welfare laws to allow animal rights’ advocates to compel the government to enforce its own laws, Lucy’s advocates are restricted to addressing this matter politically. Not having access to judicial remedies on this issue is a discouraging outcome; as Madame Justice Fraser provided in her dissent decision, what was the point of Alberta legislating laws clearly meant to protect animals if those laws are interpreted and applied only in the interests of their owners? [15]

Written by Holly Vear – lawyer in Victoria, British Columbia, Canada

This blog and the contents herein are for informational purposes only and do not constitute legal advice. Readers are advised to seek legal counsel prior to acting on any matters discussed herein. The opinions expressed are those of the author.

[6] Section 114.1(1) of the Wildlife Regulation requires the holder of a section 76 zoo permit to fully comply with the Alberta Zoo Standards.

[7] This list also incorporates certain minimum standards set by the American Zoo and Aquarium Association, which have been held as incorporated into the Alberta Zoo Standards: Reece v Edmonton (City), [2011] AJ No 876 (Court of Appeal) at paras 84-86, per Madame Justice Fraser, dissenting.

[11] The Attorney General’s agent, the Edmonton Humane Society, has refused or declined to charge the City of Edmonton with an offence under the Animal Protection Act: Reece v Edmonton (City), [2011] AJ No 876 (Court of Appeal) at para 183, per Madame Justice Fraser, dissenting.

[14]Reece v Edmonton (City), [2011] AJ No 876 (Court of Appeal) at para 47, per Madame Justice Fraser, dissenting. Readers are strongly encouraged to read Madame Justice Fraser’s dissenting decision in the present case; in addition to addressing the specific facts of Lucy’s case, she comprehensively reviews the changing landscape of animal welfare laws historically, in addition to pointing out the failings of the current state of the law and efforts for reform. You can read the judgment at the following link starting at paragraph 39: http://canlii.org/en/ab/abca/doc/2011/2011abca238/2011abca238.html.